Mark W. Shaughnessy v. Braintree, Town of - Police Department (SPR 20200673)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 1, 2020 SPR20/0673 Lieutenant Kevin L. Ware Town of Braintree Police Department 282 Union Street Braintree, MA 02184 Dear Lieutenant Ware: I have received the petition of Mark W. Shaughnessy of Boyle Shaughnessy Law, P. C. appealing the response of the Town of Braintree Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Attorney Shaughnessy requested records pertaining to a January 22, 2020 incident, involving three identified persons, on Granite Street in the Town of Braintree, specifically: 1. The logs; run sheets; call recordings, and other documents and materials; 2. All photographs taken, generated or otherwise obtained during, in connection with, and/or as a result of the incident; 3. All reports, citations, notes, memorandum, correspondence, email or other paperwork and/or documents generated or otherwise during, in connection with, and/or as a result of the incident; 4. All evidence taken from the scene relative to the incident; 5. All statements taken from any person associated with the incident; 6. All 911 calls, transcripts and/or tapes generated as a result of, or in connection of the incident; and 7. Any other document, photograph, sketch or other material generated or otherwise obtained during, in connection with, and/or as a result of the incident. In a March 3, 2020 response, the Department denied Attorney Shaughnessy’s request, in part, under Exemption (f) of the Public Records Law. As a result, Attorney Shaughnessy petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Status of the requestor In Attorney Shaughnessy’s petition, he indicates that he seeks the records relating to the legal representation of an identified person and Norfolk Companies. Please be aware, Attorney One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Lieutenant Kevin L. Ware SPR20/0673 Page 2 May 1, 2020 Shaughnessy’s interest in the responsive records and his status as an attorney representing a client does not afford him any greater right of access to the requested information under the Public Records Law than any other person. The Public Records Law does not distinguish between requestors. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Shaughnessy’s status as an attorney representing a client in this matter will play no role in a determination as to whether the records should be disclosed to the public in its entirety. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which material would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an on-going investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a “case-by-case

Lieutenant Kevin L. Ware SPR20/0673 Page 3 May 1, 2020 consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. The Department’s March 3rd response indicates that the request has been denied in part, however, the Department does not detail what records have been withheld under Exemption (f). The Department’s response merely states the language of Exemption (f) without providing specific information pertaining to how it applies to these requested records. Based on the March 3rd response, I find that the Department did not demonstrate how disclosure of the records, even in a redacted format, would compromise or negatively impact any on-going investigation under Exemption (f). Burden of specificity; duty to segregate The Department denied Attorney Shaughnessy’s request without supporting the withholding of all the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, ------------------------------- 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non-exempt, segregable portions of the public records. In addition, the Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (f). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying each of the records. Therefore, the Department must identify how many and what type of record(s) it has in its possession that the Department withheld. Conclusion Accordingly, the Department is ordered to provide Attorney Shaughnessy with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as is practicable. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Lieutenant Kevin L. Ware SPR20/0673 Page 4 May 1, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Mark W. Shaughnessy, Esq.